Greyhound Lines, Inc.

Plain-English summary

Greyhound Lines was cited for failing to cover or guard an open vehicle service pit, which OSHA treated as a violation of 29 C.F.R. § 1910.22(c). Administrative Law Judge John A. Carlson decided the case on stipulated facts, without a hearing, and found the violation. Greyhound sought Commission review, arguing that the standard was unconstitutionally vague, that it set no uniform method of compliance, and that a "reasonable man" test should apply. The Commission rejected these arguments. It noted it has no power to rule on the constitutionality of the Act, and it held that the standard is not vague because it plainly tells employers the hazard (open pits) and what is required (covers or guardrails). The Commission also explained that a standard need not dictate one uniform abatement method; giving employers flexibility is preferable. The Judge's decision was affirmed.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.22(c)
• Outcome: Affirmed. The Commission upheld ALJ Carlson's finding that Greyhound violated the standard by leaving a vehicle service pit unguarded.
• Key point: Section 1910.22(c) is not unenforceably vague; it clearly identifies the open-pit hazard and the required abatement (covers or guardrails), and a standard need not prescribe a single method of compliance.

Full text (OSHRC public release)

Docket No. 76-2334

GREYHOUND LINES, INC.

OSHRC Docket No. 76-2334

Occupational Safety and Health Review Commission

August 17, 1977

Before: BARNAKO, Chairman; and CLEARY, Commissioner.

COUNSEL:

Baruch A. Fellner, Council for Regional Litigation, Office of the Solicitor, USDOL

Ronald M. Gaswirth, Regional Solicitor, U.S. Department of Labor

Richard M. Hannon, for the employer

OPINION:

DECISION

BY THE COMMISSION: A March 1, 1977, decision of Review Commission Judge John A. Carlson is before the Commission for review pursuant to 29 U.S.C. § 661(i).

Judge Carlson held that the respondent had failed to guard open vehicle service pits in violation of the safety standard set forth at 29 C.F.R. § 1910.22(c).

In its petition for review of that decision, the respondent merely states that the decision of the Judge is in error because:

[I]t fails to require that the reasonable man test be applied, it fails to establish any uniform method of compliance with the Act, and it fails to find that the Act is unconstitutionally vague.

Although the parties were invited to file briefs, neither has done so.

For reasons that follow, the Judge's decision is affirmed.

With respect to the respondent's contention regarding the vagueness of the Act, n1 the Commission has no authority to pass on the constitutionality of the Act. Buckeye Industries, Inc., 75 OSAHRC 21/B3, 3 BNA OSHC 1837, 1975-76 CCH OSHD para. 20,239 (No. 8454, 1975), appeal docketed, No. 76-1467, 5th Cir., February 19, 1976.

• • • Footnotes - - -

n1 The Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq., 84 Stat. 1590.

• • • End Footnotes - - -

After considering the respondent's petition for review in conjunction with a memorandum filed with Judge Carlson, the Commission interprets the respondent's remaining contentions to relate to the question of whether 29 C.F.R. § 1910.22(c) n2 is unenforceably vague on its face. n3 See Cape and Vineyard Division of the New Bedford Gas and Edison Light Co. v. OSHRC, 512 F.2d 1148, 1152 (1st Cir. 1975). The wording of § 1910.22(c) is not vague. It specifically apprises an employer of the hazard addressed n4 and what is required to achieve compliance, either covers or guardrails. Greater specificity is not required. See Taylor Building Associates, 77 OSAHRC 27/A10, 5 BNA OSHC 1083, 1977-78 CCH OSHD para. 21,592 (No. 3735, 1977).

A standard need not specify particular methods of compliance, nor require a single uniform method of abatement. It is generally more desirable to allow employers flexibility in adopting compliant safety measures suitable to their own workplaces. Diebold, Inc., 76 OSAHRC 3/E5, 3 BNA OSHC 1897, 1975-76 CCH OSHD para. 20,333 (No. 6767), appeal docketed, No. 76-1278, 6th Cir., March 8, 1976.

• • • Footnotes - - -

n2 That standard provides as follows:

Covers and/or guardrails shall be provided to protect personnel from the hazards of open pits, tanks, vats, ditches, etc.

n3 The respondent did not urge Judge Carlson "to establish any uniform method of compliance with the Act." Therefore, if the Commission were to literally interpret the respondent's petition this contention would be rejected on the basis that it was raised untimely. See Bechtel Power Corp., 76 OSAHRC 38/E2, 4 BNA OSHC 1005, 1975-76 CCH OSHD para. 20,503, n. 13(a) (No. 5064, 1976), and the cases cited therein; River Terminal Railway Co., 75 OSAHRC 13/A2, 3 BNA OSHC 1808, 1975-76 CCH OSHD para. 20,215 (No. 4419, 1975).

n4 The stipulation of facts, upon which the case was decided without a hearing, acknowledges that respondent's employees were exposed to an open pit when the vehicle service pit was not covered or guarded. The parties further stipulated that a possible injury could result if an employee were to fall into this unguarded open pit. Furthermore, the Commission held two years before the inspection in this case that 29 C.F.R. § 1910.22(c) applies to vehicle service pits. Lee Way Motor Freight, Inc., 74 OSAHRC 22/D12, 1 BNA OSHC 1689, 1973-74 CCH OSHD para. 17,693 (No. 1105, 1974). That decision was affirmed more than a year before this inspection. Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 (10th Cir. 1975).

• • • End Footnotes - - -

Judge Carlson properly concluded that § 1910.22(c) is applicable to respondent's vehicle service pit n5 and that the violation occurred as charged. His decision is therefore affirmed.

• • • Footnotes - - -

n5 Lee Way Motor Freight, Inc. v. Secretary of Labor, supra; Greyhound Lines, Inc., 77 OSAHRC 32/E3, 5 BNA OSHC 1132, 1977-78 CCH OSHD para. 21,610 (No. 12035, 1977); Greyhound Lines, Inc., 76 OSAHRC 131/D1, 4 BNA OSHC 1792, 1976-77 CCH OSHD para. 21,183 (No. 8228, 1976), appeal docketed, No. 76-3246, 9th Cir., October 20, 1976; Greyhound Lines-West, 76 OSAHRC 59/B2, 4 BNA OSHC 1266, 1976-77 CCH OSHD para. 20,736 (No. 3120, 1976), appeal docketed, No. 76-2608, 9th Cir., July 23, 1976.

• • • End Footnotes - - -